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It is the taking of the testimony of a any person, whether he be a party or not, but at
the instance of a party to the action. This testimony is taken out of court. It may be either
by (a) an oral examination, or by (b)a written interogatory. (Sec. 1, Rule 23, Rules of

It is a written testimony of a witness given in the course of a judicial proceeding, in

advance of the trial or hearing upon oral examination or in response to written
interrogatories and where an opportunity is given for cross examination. (Republic v.
SandiganBayan, G.R. no. 112710, May 30, 2001)

II. Basis

A.M. No. 03-1-09-SC, July 13, 2004

Emphasis on the Discovery under the Guidelines on Pre-trial

Par. 1.2 Section A provides that:

The court shall issue an order requiring the parties to avail of interrogatories to parties
under Rule 25 and request for admission by adverse party under Rule 26 or at their
discretion make use of depositions under Rule 23 or other measures under Rule 27 and
28 within five (5) days from the filing of the answer. A copy of the order shall be served
upon the defendant together with the summons and upon the plaintiff.

III. Depositions during Pre-Trial

In the case of Jonathan Land oil International Co. vs Sps. Mangudadatu:

The Rules of Court and jurisprudence, do not restrict a deposition to the sole function
of being a mode of discovery before trial. Under certain conditions and for certain
limited purposes, it may be taken even after trial has commenced and may be used
without the deponent being actually called to the witness stand. In Dasmarinas
Garments v. Reyes, we allowed the taking of the witnesses’ testimonies through
deposition, in lieu of their actual presence at the trial.

Thus, depositions may be taken at any time after the institution of any action,
whenever necessary or convenient. There is no rule that limits deposition-taking only to
the period of pre-trial or before it; no prohibition against the taking of depositions after
pre-trial. There can be no valid objection to allowing them during the process of executing
final and executory judgments, when the material issues of fact have become numerous
or complicated. In keeping with the principle of promoting the just, speedy and
inexpensive disposition of every action and proceeding, depositions are allowed as a
departure from the accepted and usual judicial proceedings of examining witnesses in
open court where their demeanor could be observed by the trial judge. Depositions are
allowed, provided they are taken in accordance with the provisions of the Rules of Court
(that is, with leave of court if the summons have been served, without leave of court if an
answer has been submitted); and provided, further, that a circumstance for their
admissibility exists (Section 4, Rule 23, Rules of Court).

The Rules of Court vests in the trial court the discretion to order whether a deposition may
be taken or not under specified circumstances that may even differ from those the
proponents have intended. However, it is well-settled that this discretion is not unlimited.
It must be exercised -- not arbitrarily, capriciously or oppressively -- but in a reasonable
manner and in consonance with the spirit of the law, to the end that its purpose may be

When a deposition does not conform to the essential requirements of law and may
reasonably cause material injury to the adverse party, its taking should not be allowed.
This was the primary concern in Northwest Airlines v. Cruz. In that case, the ends of
justice would be better served if the witness was to be brought to the trial court to testify.
The locus of the oral deposition therein was not within the reach of ordinary citizens, as
there were time constraints; and the trip required a travel visa, bookings, and a substantial
travel fare. In People v. Webb, the taking of depositions was unnecessary, since the trial
court had already admitted the Exhibits on which the witnesses would have testified.
IV. When may depositions be taken

a. By Leave of Court
Before the service of an answer but after the jurisdiction has been acquired over
the defendant or over the property subject of the action
b. Without Leave of Court
After an answer has been served.

V. Policy Allowing Depositions

A deposition may be taken with leave of court after jurisdiction has been obtained over
any defendant or over property that is the subject of the action; or, without such leave,
after an answer has been served. Deposition is chiefly a mode of discovery, the primary
function of which is to supplement the pleadings for the purpose of disclosing the real
points of dispute between the parties and affording an adequate factual basis during the
preparation for trial. The liberty of a party to avail itself of this procedure, as an attribute
of discovery, is well-nigh unrestricted if the matters inquired into are otherwise relevant
and not privileged, and the inquiry is made in good faith and within the bounds of the law.
(Jonathan Land Oil International Co. v Sps. Mangudadatu, G.R No. 155010, Aug 16,

VI. Limitations on the Liberty to Use Deposition

Limitations would arise, though, if the examination is conducted in bad faith; or in such
a manner as to annoy, embarrass, or oppress the person who is the subject of the inquiry;
or when the inquiry touches upon the irrelevant or encroaches upon the recognized
domains of privilege. (Jonathan Land Oil International Co. v Sps. Mangudadatu, G.R No.
155010, Aug 16, 2004)

VII. Scope of Examinations of Deposition

“What is chiefly contemplated is the discovery of every bit of information which
may be useful in the preparation for trial, such as the identity and location of
persons having knowledge of relevant facts; those relevant facts themselves;
and the existence, description, nature, custody, condition, and location of any
books, documents, or other tangible things. Hence, "the deposition-discovery
rules are to be accorded a broad and liberal treatment. No longer can the time-
honored cry of "fishing expedition" serve to preclude a party from inquiring into
the facts underlying his opponent's case. Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts he has in his
possession. The deposition-discovery procedure simply advances the stage at
which the disclosure can be compelled from the time of trial to the period
preceding it, thus reducing the possibility, of surprise, . . . “ (Republic v
SandiganBayan, G.R. No. 90478, Nov 21, 1991)

Deposition has the following limitations according to the Rule 23, Rules of Court ;

1. The deponent may not be examined regarding any privileged matter,

2. The deponent may only be examined regarding any matter which is relevant to the
subject of pending action,
3. The Courts may issue orders to protect the parties and deponents to limit
VIII. Where Deposition may be used;
1. At the trial
2. At the hearing of a motion
3. At the hearing of the interlocutory order.
IX. Against whom may a Deposition be used against

A deposition may be taken against a party who was present during the time of its
taking or if he was duly represented even if he is not present. If the two preceding
instances are absent but he was duly notified thereof, a deposition may still be taken
against him.
X. Particular Uses of Deposition under Rule 23 Sec 4.

As a general rule, the deposition of an ordinary witness may be used only for the purpose
of contradicting or impeaching the testimony of the deponent as the witness.

Exception to the rule that the deposition of an ordinary witness may be used for any
purpose if the court finds the following circumstances;

1. The witness is dead,

2. The witness resides more than 100 km from the place of trial or hearing, or is out
of the Philippines unless it appears that his absence was procured by the party
offering the deposition,
3. That the witness was unable to attend the trial or hearing due to sickness, age
infirmity or imprisonment,
4. That the party offering the deposition was unable to procure the attendance of the
witness by subpoena,
5. When exceptional circumstance exist upon application and notice.

In cases of witnesses of a non- resident foreign corporation the Supreme Court

decided in the case of San Luis v Hon. Pablito Rojas that “ the rule does not make any
distinction or restriction as to who can avail of deposition. The fact that private respondent
is a non-resident foreign corporation is immaterial. The rule clearly provides that the
testimony of any person may be taken by deposition upon oral examination or written
interrogatories, at the instance of any party. Depositions serve as a device for
ascertaining the facts relative to the issues of the case. The evident purpose is to enable
the parties, consistent with recognized privileges, to obtain the fullest possible knowledge
of the issues and facts before civil trials and thus prevent the said trials from being carried
out in the dark.”

XI. Effects of taking a deposition

As a general rule, taking a depostion of a person does not make him your own witness
except when the deposition is formally offered in court, it becomes the offeror’s witness.
However, even if the deposition is formally offered in court, the offeror cannot use it as its
own witness under then following circumstances;

1. When you offer in evidence the deposition and use it as a method of impeaching
or contradicting,
2. When you introduce in evidence the deposition of your opponent under par b sec
4 “(b) The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an
adverse party for any purpose;”
XII. Person before Whom Deposition may be Taken

Deposition in the Philippines may be taken by a Judge, a Notary Public, or any persons
authorized to administer oaths agreed upon in writing by the parties.

Depositions taken abroad my be effected upon In a foreign state or country,

depositions may be taken (a) on notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent of the Republic of the
Philippines, (b) before such person or officer as may be appointed by commission or
under letters rogatory; or (c) the person referred to in section 14 hereof.

Northwest airlines v Cruz G.R. No. 137136 3 Nov 1999

“The deposition document clearly indicates that while the consul swore in the
witness and the stenographer, it was another officer in the Philippine Consulate
who undertook the entire proceedings thereafter. Respondent Northwest argues
on the presumption of regularity of official functions and even obtained a
certification to this effect plus an assertion that none of the participants in the
Consulate were in any way related to the respondent or their counsel. But
presumptions should fail when the record itself bears out the irregularity.”

XIII. Commission or Letters Rogatory

A commission may be defined as "(a)n instrument issued by a court of justice,
or other competent tribunal, to authorize a person to take depositions, or do
any other act by authority of such court or tribunal" (Feria, J., Civil Procedure,
1969 ed., p. 415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory,
on the other hand, may be defined as "(a)n instrument sent in the name and by
the authority of a judge or court to another, requesting the latter to cause to be
examined, upon interrogatories filed in a cause pending before the former, a
witness who is within the jurisdiction of the judge or court to whom such letters
are addressed" (Feria, J., op. cit., citing Cyclopedic Law Dictionary, p. 653).
Section 12, Rule 24 just quoted states that a commission is addressed to
"officers . . . designated . . . either by name or descriptive title," while letters
rogatory are addressed to some "appropriate judicial authority in the foreign
state." Noteworthy in this connection is the indication in the Rules that letters
rogatory may be applied for and issued only after a commission has been
"returned unexecuted" (Dasmarinas Garments vs Reyes, GR No. 108229 24
Aug 1993)

XIV. Procedure in Taking of Deposition

If the deposition is to be taken upon oral examination;

1. Motion for leave if necessary
2. Service of notice of deposition indicating time and place of deposition taking
and the identity of the deponents
3. Request for subpoena
4. Deposition taking proper
5. Submission of TSN of witness and entry of desired changes
6. Signing of the deposition by the witness and parties
7. Certification by the deposition officer who will seal the deposition and will
file it with the court.

If the deposition is upon written interrogatories

1. Motion for leave of court if necessary,
2. Service of notice of deposition indicating identity of the deponents, and
deposition officer
3. Exchange of interrogatories
4. Transmission of notice and interrogatories to deposition officer
5. Request for subpoena
6. Deposition taking proper
7. Submission of TSN to the witness and entry of desired changes
8. Signing of the deposition by the witness and parties
9. Certification by the deposition officer who will seal the deposition and will
file it with the court.

XV. Remedies of deposition taking

Upon oral examination,

1. Seasonable motion for orders to protect the parties or the deponents, filed with the
court where the case is pending which can disallow the deposition, limit the scope
of manner thereof, prohibit certain matters etc. (sec 16 rule 23)
2. Motion to terminate of limit the examination of deponents or parties during the
deposition taking upon a showing that it is being done in bad faith, or annoy,
embarrass or oppress the deponent or party, filed with the court where the case is
pending or in RTC of place where deposition is being taken (sec 18 rule 23)

Upon written interrogatories

1. Objections in the form of interrogatories which must be made within the period to
serve succeeding interrogatories or within 3 days after the service of the last
interrogatories. (sec 29 rule 23)
2. Seasonable motion for orders to protect the parties or the deponents filed
with the court where the case is pending which can disallow the deposition
limit the scope or manner thereof, prohibit certain matters etc. and motion
for leave if necessary. (sec 28 rule 23)

In both cases, if the examination is ordered terminated, only the court where the case is
pending can order a resumption. Likewise, the objecting party has the right party to
demand suspension of deposition in order to file a motion to terminate or limit the

XVI. Effects of Errors and Irregularities under Sec 29 Rule 23

1. As to notice – waived unless promptly objected to deposition taking or as soon as

disqualification becomes known, or could be discovered with reasonable diligence.
2. As to competency or relevance of evidence – not waived unless the ground of the
objection is one which might have been obliviated or removed if presented at the
3. As to errors or irregularities in manner of taking deposition in the form of questions
or answers- in the oath or the affirmation or in the conduct of the parties and the
other particulars, it is waived unless reasonable objection thereto is made at the
taking of the deposition.
4. As form of written interrogatories- it is waived unless objected to within the period
to serve succeeding interrogatories.
5. As to manner of preparation- errors and irregularities in the manner in which the
testimony is described or the deposition is prepared, signed, certified sealed,
endorsed, transmitted or file otherwise dealt with the officer under sec 17, 19, 20
and 26 of this rule are waived unless the deposition or some part thereof is made
with reasonable promptness after such defect is or with due diligence might have
been ascertained.